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XY, LLC v. Trans Ova Genetics, LC

United States District Court, D. Colorado

January 8, 2016

XY, LLC, Plaintiff / Counterclaim Defendant,
TRANS OVA GENETICS, LC, Defendant/Counterclaim Plaintiff.


William J. Martínez United States District Judge

Plaintiff XY, LLC (“XY”) brings this case against Defendant Trans Ova Genetics, LC (“Trans Ova”) arising out of disputes over a License Agreement which had permitted Trans Ova to use XY’s patented technology. XY brings claims for breach of contract and patent infringement, and Trans Ova counterclaims for breach of contract and breach of the covenant of good faith and fair dealing, as well as asserting various defenses. (See ECF No. 301.) This case is set for a three-week jury trial commencing on Monday, January 25, 2016, with the Final Trial Preparation Conference set for January 8, 2016. (ECF No. 314.)

This matter is before the Court on three motions seeking to exclude expert testimony. For the reasons set forth below, XY’s Motion to Exclude Expert Testimony of Dr. David DeRamus (ECF No. 330) is denied in its entirety, and Trans Ova’s Motions to Exclude Testimony of XY’s Expert Dr. James C.S. Wood (ECF No. 322) and XY’s Expert Todd Schoettelkotte (ECF No. 326) are granted in part and denied in part.


A district court must act as a “gatekeeper” in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).

To qualify as an expert, the witness must possess such “knowledge, skill, experience, training, or education” in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth. LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). To establish that the proffered testimony is reliable, the reasoning or methodology underlying the testimony must be valid and must be properly applied to the facts in issue. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993) (listing four factors relevant to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error associated with the theory; and (4) whether the theory has attained widespread or general acceptance).

While an expert witness’s testimony must assist the jury to be deemed admissible, Fed.R.Evid. 702(a), it may not usurp the jury’s fact-finding function. See Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). The line between what is helpful to the jury and what intrudes on the jury’s role as the finder of fact is not always clear, but it is well-settled that “[a]n opinion is not objectionable just because it em braces an ultimate issue.” Fed.R.Evid. 704.

Ultimately, “the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee’s note. “[T]he trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system. . . . Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id.


XY[1] moves to exclude Dr. DeRamus’s opinions to the extent they are based on alleged anticompetitive conduct, as a result of the Court’s Order Granting Summary Judgment on Trans Ova’s Sherman Act counterclaims. (ECF No. 330.)

However, since XY’s Motion was filed, the Court has permitted Trans Ova to reassert its substantive antitrust claims via a recoupment defense against XY, which-if successful-would allow Trans Ova to offset any damages XY might win on its claims. (ECF No. 376.) This ruling precludes XY’s argument that the challenged opinions relating to XY’s alleged anticompetitive conduct are no longer relevant, because the Sherman Act claims have been revived against XY and may still be argued to the jury. (Id.) The Court concludes that these opinions may be introduced in support of Trans Ova’s recoupment defense. Accordingly, XY’s Motion is denied.

However, the Court cautions Trans Ova that Dr. DeRamus’s testimony must still comport with the current status of this case with respect to Inguran. The Court’s recent Order on Motions in Limine indicated that evidence of Inguran’s market power is admissible to provide context for an understanding of the relevant industry and XY’s market power in that industry (ECF No. 396 at 7-8), but it is not independently relevant for purposes of demonstrating Inguran’s own anticompetitive conduct because Inguran is no longer a third-party defendant in this case. (See ECF No. 393.) As such, Dr. DeRamus must limit his testimony accordingly.


Trans Ova moves to exclude portions of the expert report of Dr. Wood, XY’s flow cytometry and cell structure expert, and to limit his testimony regarding interpretation of the License Agreement, willful infringement, and secondary considerations of non-obviousness. (ECF No. 322.)

A. Interpretation of the License Agreement

Trans Ova argues that Dr. Wood impermissibly renders legal conclusions by interpreting the contract and opining that Trans Ova breached the License Agreement, and that he is unqualified to so opine because he is not a legal expert. (Id. at 6-8.)

Among others, Dr. Wood’s expert reports contain the following opinions:

28. I have evaluated the facts discussed below and it is my opinion that Trans Ova has committed at least the following breaches of the License Agreement.
A. Failure to Disclose and Assign Improvements 29. Trans Ova has breached the License Agreement by failing to inform XY of Improvements that Trans Ova made to XY’s technology ...

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